In win for press, judge halts CA ordinance that set buffer zones around encampment sweeps

The ordinance, which went into effect on March 31, grants city officials or their contractors the authority to establish buffers around “abatements” on private or public property, but without defining how far press or advocates can be pushed back. The ACLU Foundation of Northern California filed a federal lawsuit against the City of Fresno to challenge the new law. A coalition of press freedom organizations filed an amicus brief in support of the ACLU’s suit and its request for a preliminary injunction, which a federal judge granted on May 24.

Journalists who have covered homelessness in California told the U.S. Press Freedom Tracker that police have become increasingly aggressive toward anyone trying to document encampment sweeps or evictions.

In 2020, in the first encampment-related incident for the Tracker, photojournalist Glenna Gordon was arrested while covering an encampment cleanup in LA on May 7 after she walked into the street in compliance with police orders to move back. The charges against her — for blocking the roadway — were dropped before her hearing.

Gordon told the Tracker that police were hostile with her every time she was out at camps on assignment for The New York Times Magazine, and that sanitation employees would call for officers whenever they saw her and the sweeps.

“Their default is antagonism and they’ll act in big and small ways against the media,” Gordon said. “They don’t see the media as a tool of democracy, they think the press makes their jobs harder. They absolutely don’t want you there and they’re going to do everything to make your job harder.”

In the years since Gordon’s arrest, police evictions of camps and the protests around them have already proven to be tense sites for journalists. Members of the press have been assaulted at least a dozen times on the beat, the vast majority of time at the hands of law enforcement.

The Tracker has also documented 26 journalists arrested at encampment sweeps or eviction protests, and those charged faced counts ranging from blocking a roadway to obstructing a clean up operation to trespassing. Three reporters are still facing charges, and one is set to go to trial at summer’s end.

Radio reporter April Ehrlich was arrested after she refused to be pushed back to a media staging area while police evicted an encampment in Medford, Oregon, in September 2020. She was charged with resisting arrest, trespassing and obstructing a public officer; after multiple postponements, her trial is scheduled to begin on Sept. 16, 2022. If convicted, Ehrlich faces more than a year in prison and fines up to $7,500.

“April is a professional journalist and part of her job is being present during charged situations that sometimes involve law enforcement,” Jackson Public Radio Executive Director Paul Westhelle said in a statement at the time. “She knows how to be close enough to report without interfering.

“There was no compelling public safety issue in the park that day, no violent person, no weapons, no threats – just a group of homeless people with stories,” Westhelle said.

Fresno City Councilmember Miguel Arias, who co-authored the municipal code amendment, told the Fresno Bee that public safety was their primary concern when rewriting the city’s ordinance.

“I can tell you that the intention of the council when it adopted it was to ensure city staff could create a protective area when the heavy equipment moves in to pick up the ton of material that is left behind by these encampments,” Arias said. “At no time did the council discuss the ordinance as a strategy to keep people from observing, recording, and engaging with the homeless.”

The ordinance grants city officials or their contractors broad authority to remove press and advocates during sweeps, but does not define when an abatement action begins or guarantee that journalists will be able to observe from a reasonable distance. Under the new law, entering the restricted area “without express authorization” would result in a fine of up to $250 or a misdemeanor charge.

When the ACLU filed its lawsuit on March 16, it argued that the law strips the press of their ability to document sweeps and further silences the unhoused community. Tracker partners First Amendment Coalition, National Press Photographers Association and the Reporters Committee for Freedom of the Press were among the coalition that filed an amicus brief on April 12 in support of the ACLU.

In a hearing on May 11, James Betts, an attorney for the City of Fresno, asserted that safeguards for press and advocates are implicit in the ordinance. He added that in practice cordons would only be used when it is determined that the abatements “pose a particular danger because of the proximity of heavy equipment to individuals within the encampment zone.”

But, just over 200 miles south of Fresno in Los Angeles, a similar city ordinance resulted in the arrest of a journalist in 2021.

Sean Beckner-Carmitchel told the Tracker he arrived on July 1, 2021, to document a cleanup operation in LA’s Harbor City neighborhood alongside two activists. They reached an agreement with an LA Sanitation & Environment worker to observe from a location further back, away from the trucks, but when LAPD officers arrived they were told to move even further. As they tried to comply with the officer’s conflicting directions, they were all detained and cited with “delaying/obstructing dept sanitation clean up operation.”

“Tell me exactly how far I should be, and if it’s in the realm of reasonable I’ll probably do it,” Beckner-Carmitchel told the Tracker in April 2022. “When you say ‘buffer’ or ‘barrier’ — that’s when the issue becomes, ‘Are people going to be able to do their jobs or not?’”

That LA ordinance has been challenged as unconstitutional, and a January 2021 ruling by the U.S. Court of Appeals for the Ninth Circuit affirmed a preliminary injunction that included barring the city from charging anyone under the law.

Monica Price, a legal fellow at the First Amendment Coalition, told the Tracker the Fresno law is particularly alarming because of how broadly it is phrased.

“They gave themselves very wide latitude. The ordinance doesn’t restrict how wide the buffer zone can be and it’s unspecific on the timing of when the buffer zone should be set up,” Price said. “They could block off the whole park when they’re only doing a sweep in one corner of it.”

District Judge Dale Drozd of the Eastern District of California granted the ACLU’s request for a preliminary injunction on May 24, which bars the city from creating any such buffer zones or otherwise enforcing the ordinance until the case is resolved.

“The amended ordinance applies to reporters and the media in general, who are not by its terms even granted any opportunity to enter the ‘buffer zones’ afforded to persons providing services to the occupants or advocating on their behalf,” Drozd wrote in his order granting the motion. “Defendant has simply offered no explanation as to how having the press on the location of abatement activities it carries out would interfere with defendant’s health and safety goals.”

Price told the Tracker that the presence of members of the press and public at abatement operations is critical.

“This is, for me, a classic case where having observers — anyone in the public or the press — really matters and really makes a difference in terms of following policy,” Price said. “The government employees and law enforcement conducting the sweeps behave very differently when they know that someone is watching.”